People v. Nash

87 Cal.App.5th 483

303 Cal.Rptr.3d 590

The PEOPLE, Plaintiff and Respondent,

v.Robert NASH, Defendant and Appellant.

D079539

Court of Appeal, Fourth District, Division 1, California.

Filed January 13, 2023

Patrick Morgan Ford for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

Convicted of three lewd acts on two young girls, defendant Robert Nash was originally sentenced to an aggregate prison term of 10 years after the trial court determined that a 15-years-to-life sentence on each count under the One Strike law ( Pen. Code, § 667.61, subd. (b) ) would be cruel and/or unusual punishment.¹ Nash appealed, and we reversed, agreeing with the People that a mandatory life term was constitutional. ( People v. Nash (Oct. 2, 2019, D073427) [nonpub. opn.] ( Nash I ).) Following remittitur, the trial court resentenced Nash to concurrent 15-years-to-life terms on each of the three lewd acts counts. Nash again challenges the constitutionality of his sentence, an argument we reject based on law of the case.

The People further contend on appeal that prison terms of 15 years to life were unauthorized because section 667.61, subdivision (j)(2) of the One Strike law mandates 25 years to life where lewd acts involved multiple victims each under the age of 14. The courts are divided as to whether imposing a 25-years-to-life sentence under subdivision (j)(2) violates due process where, as here, the accusatory pleading only alleges a violation of subdivision (b) of section 667.61.² But we need not weigh in on this conflict to decide the case before us. Because the amended information expressly stated that the effect of the One Strike law allegations was potential exposure of 15 years to life, it did not place Nash on fair notice that he would face 25 years to life. Rejecting the People's argument on narrow factual grounds, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An amended information charged Nash with one lewd act ( § 288, subd. (a) ) on three-year-old E.N. and two lewd acts on five-year-old K.T. The jury convicted him as charged and found the associated One Strike law allegations under section 667.61, subdivisions (b), (c), and (e) true. At the original sentencing, the trial court declined to impose 15-years-to-life prison terms under section 667.61, subdivision (b), concluding that such sentences would be unconstitutionally cruel or unusual. It instead imposed a six-year term for count 1 and consecutive two-year terms for counts 2 and 3, for an aggregate prison term of 10 years. Nash and the People appealed.

Among the arguments on appeal, the People challenged Nash's sentence as unauthorized. They argued the trial court should have imposed 15-years-to-life prison terms that were mandated by the One Strike law ( § 667.61, subd. (b) ). We agreed in Nash I , explaining that 15-years-to-life prison terms would not constitute cruel and/or unusual punishment under the state and federal constitutions, and remanding for resentencing.

Following issuance of the remittitur, Nash filed a new trial motion and petitioned for writ of habeas corpus. He claimed he received constitutionally ineffective assistance at trial and that newly discovered evidence pointed to his actual innocence. The court denied the new trial motion, concluding it exceeded the scope of the remittitur. It issued an order to show cause on the habeas petition on the narrow ground of ineffective assistance based on trial counsel's failure to investigate and present certain impeachment evidence. While the habeas petition remained pending before a different judge, the court proceeded with resentencing.

The resentencing hearing took place on August 19, 2021. Nash's counsel argued that circumstances had changed since Nash I , with new evidence making the case "even thinner for the prosecution" and pointing to "factual innocence." He faulted Nash's trial counsel for failing to hire an investigator to challenge the credibility of Nash's ex-wife Joy, who testified for the prosecution. Acknowledging that the request was a difficult one to make in light of the prior ruling in Nash I , counsel nonetheless urged the court to conclude that a prison term of 15 years to life would amount to cruel and/or unusual punishment. To the extent the court rejected that argument, defense counsel asked it to run the life terms concurrently.

The court remarked that "there is nothing that the 4th DCA is ever going to say that is going to convince me that these sentences that I will be imposing are not cruel and/ ... or unusual under both the US constitution and our state constitution." It nevertheless rejected Nash's claim that the evidence supported his factual innocence. Ultimately, "[a]t the direction of the 4th DCA," it imposed a 15-years-to-life prison term on count 1 and concurrent 15-years-to-life prison terms on counts 2 and 3.

DISCUSSION

Appealing his sentence for a second time, Nash suggests that imposing 15-years-to-life prison terms on his lewd act convictions violates state and federal constitutional prohibitions on cruel and/or unusual punishment ( U.S. Const., 8th Amend.; Cal. Const. art. I, § 17 ). In their respondent's brief, the People argue that Nash should be sentenced to prison terms of 25 years to life for each count under subdivision (j)(2) of section 667.61 rather than 15 years to life under subdivision (b). Addressing these contentions, we reject both on our record.

A. The law of the case doctrine precluded a finding that a prison term of 15 years to life was cruel and/or unusual punishment.

Nash challenges his sentence as unconstitutionally cruel and/or unusual, faulting the trial court for not considering new evidence that purportedly demonstrated his factual innocence. We find no error. Despite its continued reservations about the constitutionality of a life term, the trial court correctly concluded on remand that imposing a prison term of 15 years to life was mandated by this court's decision in Nash I .

" ‘The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal : The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’ " ( Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491, 20 Cal.Rptr.3d 890, 100 P.3d 433 ( Morohoshi ).) "The primary purpose served by the law-of-the-case rule is one of judicial economy. Finality is attributed to an initial appellate ruling so as to avoid the further reversal and proceedings on remand that would result if the initial ruling were not adhered to in a later appellate proceeding." ( Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 435, 212 Cal.Rptr. 466, 696 P.2d 1308 ( Searle ).)

At the time of resentencing, Nash I, supra , D073427, directed the trial court to resentence Nash under section 667.61, subdivision (b) consistent with the views expressed in our opinion. Citing People v. Baker (2018) 20 Cal.App.5th 711, 229 Cal.Rptr.3d 431, which upheld a life term for a person convicted of orally copulating a child despite his limited criminal history, we concluded in Nash I that imposing prison terms of 15 years to life here under section 677.61, subdivision (b) would not amount to unconstitutionally cruel and/or unusual punishment. Under the law of the case doctrine, the trial court could not reach a different conclusion. ( People v. Sandoval (1987) 194 Cal.App.3d 481, 487, 239 Cal.Rptr. 544 ( Sandoval ).)

Nash claims that newly discovered evidence changed the calculus at resentencing by impeaching key prosecution witnesses and demonstrating his factual innocence. He points to two pieces of impeachment evidence involving Nash's ex-wife Joy, the prosecution witness who reported the incident involving Nash's three-year-old niece E.N. A man who Joy dated after leaving Nash stated in a declaration that Joy falsely accused him of molesting their young daughter to secure custody. Nash likewise suggests that his trial counsel failed to interview witnesses who would have corroborated the trial testimony of a defense witness that Joy planned to leave Nash and take custody of their children. Nash separately suggests there was additional impeachment evidence as to five-year-old K.T., who testified at trial about two molestation events. He faults his trial counsel for failing to confer with a suggestibility expert "who would have explained how the second accuser would have made such allegations after learning about the first incident, and following direct and indirect allegations with her parents who were concerned with the initial allegations."³

Although potentially relevant to his claim for habeas relief based on ineffective assistance of trial counsel, the People are correct that this "new evidence" impugning the jury's verdicts was irrelevant to the trial court's inquiry at resentencing. "Far from being a proceeding at which the trier of fact resolves the issues raised in the case, the sentencing hearing—or resentencing hearing—follows the entry of the verdict and the discharge of the jury, and constitutes the occasion on which the court pronounces the judgment arising from the verdict. " ( Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1254, 135 Cal.Rptr.2d 639, 70 P.3d 1054.) While the sentencing court may resolve factual matters to select the appropriate sentence, it "resolves those issues in light of what occurred at trial, including its own impressions of matters such as the defendant's demeanor and conduct at trial." ( Ibid. ) Consequently, "[t]he parties at an ordinary resentencing hearing do not ... proffer new evidence on the issues decided by the...